USA V. GUERRERO, No. 22-10042 (9th Cir. 2023)
Annotate this Case
In this case, the defendant, Christopher De Leon Guerrero, was convicted on two counts of attempted enticement of a minor in violation of 18 U.S.C. § 2422(b) and 18 U.S.C. § 2, and was sentenced to ten years in prison and five years of supervised release. Guerrero appealed his conviction and sentence.
Guerrero's conviction was based on his online conversations with a fictional 13-year-old girl named "Emily," who was actually a federal agent. He made plans to meet "Emily" at Andersen Air Force Base for sexual activities. Guerrero argued that he could not be charged under Guam law for actions that took place on a federal enclave, Andersen Air Force Base. The United States Court of Appeals for the Ninth Circuit disagreed, citing a precedent set in United States v. Lopez.
The court affirmed Guerrero’s convictions under § 2422(b) by referencing another predicate offense, not specified in the indictment, with which he could have been charged. They concluded that both of Guerrero’s convictions could be supported by § 13.10, the Guam criminal attempt statute.
As for the sentence, the court agreed with both parties that Guerrero’s sentence should be reversed, vacated, and remanded to the district court for reconsideration of three special conditions imposed on his supervised release. These conditions were that Guerrero must not go to places where children under the age of 18 are likely to be, must not view or possess any visual depiction of sexually explicit conduct, and must participate in a sex offense-specific treatment program.
The court affirmed the convictions but reversed, vacated, and remanded the sentence to the district court for reconsideration of the three special conditions of supervised release.
Court Description: Criminal Law. The panel affirmed Christopher De Leon Guerrero’s convictions and sentence for attempted enticement of a minor in violation of 18 U.S.C. § 2422(b) and 18 U.S.C. § 2, except that it reversed, vacated, and remanded as to three special conditions of supervised release.
Section 2422(b) provides that [w]hoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.
De Leon Guerrero contended that the predicate-offense element of § 2422(b) was not established because he could not have been charged under Guam law for actions that took place on a federal enclave, Andersen Air Force Base. The panel agreed with both parties that United States v. Lopez, 4 F.4th 706 (9th Cir. 2021), forecloses that challenge. Following Lopez, the panel affirmed the § 2422(b) convictions by referencing a predicate offense not specified in the indictment—9 Guam Code Ann. § 13.10, the Guam criminal attempt statute—with which De Leon Guerrero could have been charged based on off-base conduct.
With respect to special conditions of supervised release: The panel remanded with instructions that the district court conform Special Condition 2 to refer to locations “primarily used by” children under 18.
The panel remanded with instructions that the district court conform Special Condition 4 to the holding in United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), which cautioned that conditions that too broadly restrict access to sexual images raise serious First Amendment issues.
The panel remanded with instructions that the district court modify Special Condition 14 to conform with the assessment-based approach to sex-offense-specific treatment announced at De Leon Guerrero’s sentencing.
Concurring, Judge Berzon wrote separately to explain three reasons why the reasoning and holding of Lopez, which dictates the resolution of the conviction issue in this case, are seriously mistaken: (1) the reasoning of Lopez is at war with the statutory text of § 2422(b); (2) Lopez creates stark problems of judicial administrability and overreach; and (3) Lopez muddles the case law in this circuit by looking exclusively to territorial law to locate a predicate offense.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.